Pastine v. Altman

107 A. 803, 93 Conn. 707, 1919 Conn. LEXIS 68

Opinions

Beach, J.

This is an action of ejectment to recover possession of two floors of a building formerly owned by James Musante and Bartholomew Pastine, and now occupied by the defendant, under a lease of the second and third floors, for an unfinished term of years, executed in March, 1915, by James Musante and the administratrix of the estate of Bartholomew Pastine. The plaintiffs are two minor heirs of Pastine who have never assented to the lease.

Under our statute (§ 5027) an administratrix is entitled to the custody of the real estate pending the settlement of the estate, and since the lease was executed by one cotenant and the legal representative of the other cotenant, it was valid for the time being, and until the custody and authority of the administratrix were terminated in May, 1918, by the final settlement of the estate.

Shortly after the settlement of the estate, these plaintiffs brought an action in the Superior Court against the same defendants, to have the lease declared null and void. As appears from a memorandum of decision in the file, the court held the lease void, on the sole ground that the administratrix had no power to execute a lease which extended beyond the settlement of the estate, and cancelled the lease “from and after the date of the final accounting.”

Defendant’s answer admits that the lease had been adjudged null and void so far as ‘ the plaintiffs are concerned; claims that she is now in possession under the lease with the consent and approval of Musante and of the other heirs of Pastine, except these plain tiffs; disclaims any right of exclusive possession as against the plaintiffs; and asserts “the same rights in relation to the plaintiffs that her lessors, James Musante and the other Pastine heirs, had.”

Plaintiffs demurred to this answer, because the lease had been annulled and cancelled by the judgment of the Superior Court, and on the ground that the lease was void as against the nonassenting plaintiffs, because it was an attempt by some of the tenants in common to lease a distinct and separated part of the common estate by metes and bounds without the consent of all. The demurrer was sustained on the ground last stated and judgment for the plaintiffs followed.

It is true that one tenant in common cannot convey or lease a fractional part of the common estate by metes and bounds, without the consent of the other, so as to make an arbitrary partition of the common estate, or so as to exclude the nonassenting conmon tenant from any part of the premises. “The reason why a deed by one tenant is inoperative as against his cotenant, is simply that such conveyance impairs the rights of the latter in respect to partition.” Stevens v. Norfolk, 46 Conn. 227, 229. But that is not this case. In its origin the lease in question was temporarily valid, because all those then entitled to the custody and possession of the estate joined in executing it. Until the settlement of the Pastine estate, nobody was in position to object. On the final settlement of the estate the lease, so far as it excluded the nonassenting plaintiffs from their right to the use and possession of the described portion of the building in common with the other common tenants, became voidable upon the objection of the plaintiffs. They attempted in the former action to have it declared null and void in toto. But none of. the assenting common tenants were made parties to that action, and it is clear that the judgment cancelled the lease only so far as the parties to the action were concerned. The result of that judgment is that as against these plaintiffs the lease does not exist. They are entitled to the use and possession of the whole estate as if the lease had never been executed; and the defendant does not deny this. She asserts only a right of possession in common with the plaintiffs. If the whole or any part of the leased premises should be aparted to either of the plaintiffs in partition proceedings, he would take it free from any incumbrance by the lease. It is convenient tq refer to this document under which the defendant claims as a “lease”; but it is no longer operative as a lease of the described premises; it is no more than a permission to stand in the shoes of Musante and of the other heirs of Pastine, in respect of the premises. That being so, the plaintiffs are not injured and are not entitled to judgment on the demurrer to the answer, unless the law is so that one tenant in common may not put a stranger into his shoes in respect of a fractional part of the common estate. The cases do not go to that length.

Mitchell v. Hazen, 4 Conn. 495, was an action for breach of covenant of seisin in an administrator’s deed which attempted to convey a part only of land held in common with the heirs of another estate. The deed in that case was plainly an attempt to create an absolute estate in severalty by an arbitrary partition of the common estate without the consent of the cotenant. And the court so treats it, saying, on page 510: “Indeed, the proposition is self-evident, that one tenant in common cannot deprive his cotenant of any part of his interest in the common estate, nor in any respect lessen or vary his legal rights. But if he is permitted to divide the common property into distinct moieties, by metes and bounds, and then dispose of a certain proportion in the property thus separated, he prejudices his cotenant.” Griswold v. Johnson, 5 Conn. 363, was an action of ejectment in which the defendant relied on an administrator’s deed, which also attempted to convey by metes and bounds part of a tract of land held in common with the heirs of another estate; and the court said, on page 366: “The deed of this common estate, by metes and bounds, the one tenant in common thus attempting to make a partition of the property, without any cooperation of the other, is, undoubtely, void. The point is at rest, and not to be questioned.” In Marshall v. Trumbull, 28 Conn. 183, one tenant in common conveyed his interest in the common estate reserving to to himself a right to pass and repass over a certain gangway. The reservation of the passway was held void, and Adam v. Briggs Iron Co., 61 Mass. (7 Cush.) 361, is referred to for a full exposition of the law. What is said on page 369 of the case thus referred to, is suggestive: “I have a moiety; my cotenant has a moiety. He may convey a quarter of the whole estate to one, an eighth to another, a sixteenth to another, and so on indefinitely, letting in other cotenants with me. But all being seized of aliquot parts, in the same estate, and of like kind and quality, my right to partition is not disturbed by any number of cotenants. But if he could convey his aliquot part, in specified parcels of the estate, he might diminish the value of my right, if not render it worthless.” This makes it still more clear that the rule was not aimed at the substitution of strangers in the shoes of one tenant in common, nor the possible multiplication of tenants in common, but at the arbitrary creation of estates in severalty carved out of the common estate by one tenant, which, if permitted, would impair the right of the nonassenting tenants to possess the whole estate in common,' as well as their right to have the whole estate partitioned according to law.

The original rule that a conveyance by one tenant in common of a distinct part of the common estate was void, was subsequently modified by Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112, and Goodwin v. Keney, 49 Conn. 563; and as the rule now stands, such conveyances are merely voidable, and if confirmed by the other common tenants are valid. In Hartford & Salisbury Ore Co. v. Miller, supra, on page 132, the right of nonassenting tenants in common to treat such a conveyance as void, is spoken of as a privilege which may be waived, “and having been properly waived, the conveyance is binding on them, and, operating as an estoppel against the [original] grantor, it vests the complete title in the grantee.” And in Stevens v. Norfolk, 46 Conn. 227, 229, we said: “In the light of this reason, and of the principle that each tenant’s deed is good and effectual against himself, it will be seen that if all the tenants, in common give deeds at separate times of their respective interests in the same portion of the joint estate by metes and bounds to the same person, the title must of necessity be good against them all.” This language goes far toward a solution of the present case.

The question here is whether the lease, although wholly inoperative as against the plaintiffs, may nevertheless continue to operate as an estoppel against the lessor Musante, and the heirs of Pastine who have waived their privilege of treating it as void. Such a course will injure no right of possession which the plaintiffs had before the lease was executed, and will not impair their rights in respect to partition. In these respects the plaintiffs are already protected by the former judgment. And if the defendant is content to continue to pay rent notwithstanding the breach of the lessor’s covenants, there seems to be no legal reason why he may not be permitted to do so.

The weight of authority in other jurisdictions seems to be that while a conveyance by a tenant in common of a portion of the common estate by metes and bounds cannot impair or vary the rights of a nonassenting tenant in common, the law will give effect to it so far as may be done consistently with the preservation of the entire rights of the tenants in common, and no further. See cases collected in note to Pellow v. Arctic Iron Co., 47 L. R. A. (N. S.) 573 (164 Mich. 87, 128 N. W. 918). All the rights of the plaintiffs as tenants in common are fully protected, and on the allegations of the answer they are not entitled to a judgment against the defendant for possession of the premises.

There is error, the judgment is reversed and the cause remanded for further proceedings according to law.

In this opinion Prentice, C. J.; Roraback and Gager, Js., concurred.